State v. Soboroff

• Decision Date: 20 May 2011
• Docket Number: No. 08–0623.,08–0623.
• Citation: 798 N.W.2d 1
• Parties: STATE of Iowa, Appellee,v.Jeffrey Alan SOBOROFF, Appellant.
• Court: Iowa Supreme Court

798 N.W.2d 1

STATE of Iowa, Appellee,

v.Jeffrey Alan SOBOROFF, Appellant.

No. 08–0623.

Supreme Court of Iowa.

May 20, 2011.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Michael L. Wolf, County Attorney, for appellee.MANSFIELD, Justice.

Jeffrey Soboroff was convicted following a jury trial of the offense of “threats” in violation of Iowa Code section 712.8 (2007) after posting on his website a slideshow entitled “Target for Tonight.” The slides included a photograph of a city's water tower, references to putting Thorazine in the city's water supply, and photographs of certain residents of the city with a caption expressing the view that these individuals “could use some medication.”

On appeal, Soboroff argues that section 712.8, which prohibits threats to place “any destructive substance” where it will endanger people, does not apply to the potential contamination of a city water supply with a psychotropic drug. Soboroff also contends his trial counsel was constitutionally ineffective for not moving for a judgment of acquittal because Soboroff did not make a “true threat,” i.e., a threat that a reasonable person of ordinary intelligence would have understood as such. Additionally, Soboroff argues his counsel should have requested an instruction that would have required the jury to find the elements of a “true threat.”

We hold section 712.8 can cover threats to contaminate a water supply with a psychotropic drug. Also, there was substantial evidence Soboroff made statements that would be understandable as threats by a person of reasonable intelligence. However, we agree with Soboroff that he received ineffective assistance when his counsel failed to ask for an instruction requiring the jury to find a “true threat.” While there was evidence that Soboroff's threats were real, there was also evidence from which a jury could have concluded his statements were not real threats, and this issue should have been squarely presented to the jury. Therefore, we reverse and remand for a new trial.

I. Background Facts and Proceedings.

Based upon the testimony and other evidence presented at trial, a jury could have found the following facts.

The City of Calamus water system serves approximately 400 residents and an additional 350 people when the elementary school located in the city is in session. In November 2007, the Calamus water system included a 128–foot tall water tower and a reservoir tank.

Duane Levien managed public works for Calamus. In that position, Levien oversaw the water system for Calamus. Levien checked, recorded, and refilled the chlorine, phosphate, and residual levels within the water supply daily. He also measured the amount of water pumped daily and maintained the necessary paperwork for the State. Levien usually injected about a half gallon of chlorine into the water system a day, but if he was in the process of “shocking the system,” he could “dump a hundred pounds of granule in ... just a matter of twenty minutes.”

On the morning of Monday, November 12, 2007, Levien was approached by an unnamed citizen and handed a printout from an internet website known as “freeworldkgb.” The printout was of a slideshow entitled “Target for Tonight.” The first slide contained a photograph of the Calamus water tower with the text, “I am thinking that if we drop enough Thorizine (sic) in the city water supply it might calm the population down enough so that they wont (sic) call us n-----s anymore, or dumb Jew n-----s.” The second slide had a photograph of a toad and said that “with his help, freeworldkgb has procured 500 pounds of Thorizine (sic).” Subsequent slides contained candid photographs of three city residents with various comments, including a statement, “I have decided that they could use some medication.” It was stipulated that the “freeworldkgb” website belonged to Soboroff.

Levien knew Soboroff as someone who had both made and been the subject of numerous complaints within the community. Levien had signed a petition to have Soboroff civilly committed in June or July 2007. It was also fairly common knowledge in Calamus that “freeworldkgb” was Soboroff's website.

Levien believed that “Target for Tonight” was a reference to the previous night. He contacted the Clinton County Sheriff's Office and the regional field office for the Iowa Department of Natural Resources. Levien then flushed the entire Calamus water system and drained all of the water out of the tower and the reservoir tank, a process that took approximately five to six hours. Levien did not take a sample of the water to test whether any Thorazine had actually been placed into the water tower or the reservoir tank.

Clinton County Deputy Tom Christoffersen responded to Levien's initial call. After being shown the slideshow printout, Deputy Christoffersen went to speak with Soboroff at his residence in Calamus. Deputy Christoffersen recorded his conversation with Soboroff using the audio from his in-car camera. This recording was played for the jury. The recording began with Soboroff stating, “I'm not f---ing around with anybody anymore. I'm tired of these a--holes.” When Deputy Christoffersen later disclosed that someone had made a complaint, Soboroff said, “F---'em! I put that on there to irritate them, and I'm glad they're irritated.” The recording then ended with Soboroff stating that he did not believe he had crossed the line and, if the sheriff's office did, they could call his attorney.

On November 14, 2007, a search warrant was executed at Soboroff's residence. Soboroff was present and recorded the events with a handheld video camera. Later, he posted the recording on the internet, and it was played for the jury as well. During the video, Soboroff acknowledged twice that the officers were looking for 500 pounds of Thorazine. When the officers informed Soboroff they were seizing his computer, Soboroff questioned why, and then stated, “Look, that is a satirical article, that's all that that is.” The background image on Soboroff's computer was a picture of the Calamus water tower. The officers did not find any Thorazine during the search.

On November 20, 2007, the State charged Soboroff by trial information with threats in violation of Iowa Code section 712.8.¹ On March 7, 2008, Soboroff moved to dismiss the trial information on the ground there was no evidence in the minutes of testimony that he had made a threat involving “any incendiary or explosive device or material, or any destructive substance or device in any place where it will endanger persons or property” as required by section 712.8. The district court denied the motion, ruling that it was untimely and, alternatively, that section 712.8 was not limited to incendiary or explosive types of devices and materials. The case proceeded to trial on March 10 and 11, 2008.

In addition to presenting the testimony of Levien and the two sheriff's deputies who had handled the investigation, the State also introduced the testimony of a pharmacist, Cynthia Ryan. Ryan testified that Thorazine is a psychotropic drug commonly used to treat mental or mood disorders, especially schizophrenia. She stated the common side effects for Thorazine include drowsiness, dizziness, blurred vision, and constipation, with less common side effects including a malignant syndrome that can cause a high temperature, muscle rigidity, irregular heartbeats, tardive dyskinesia (involuntary muscle spasms), and possibly even death. Ryan testified it would be impossible to predict what would happen if Thorazine were added to a city's water supply, but it was her opinion that “any use of a drug that is improper I would consider dangerous.... Drugs are only appropriate when prescribed for a particular patient for a particular condition.” Ryan further testified Thorazine is not a controlled substance, but is restricted to “purchase by order of prescription.” Ryan estimated that a single prescription would provide about 30 tablets of Thorazine ranging from 10 to 100 milligrams. Ryan further opined that it would be “near impossible” to obtain 500 pounds of Thorazine even with a relatively long period of time to do so.

After the State rested its case, Soboroff's counsel moved for a judgment of acquittal, renewing his arguments in the motion to dismiss and asserting there was “no evidence presented by the State” to establish the alleged threat involved a substance covered by section 712.8. The district court denied the motion. After further discussion, the following dialogue ensued:

MR. VILMONT: And are we to conclude, Your Honor, that the State has proven in this case up to this point in time that Thorazine is a destructive substance?

THE COURT: The Court finds the State has provided sufficient evidence to make a prima facie case so that the jury should consider the issue, yes.

Soboroff then took the stand in his own defense and testified in a rambling way. Soboroff maintained that the slideshow was “a story” and “a metaphor.” Soboroff gave the jury the following explanation for why he had posted the slideshow:

I wrote this story about a toad who is down at the river mourning the loss of his friend because some individual, either an adult or a child, took a firecracker, put it in the animal's cloaca and blew it up. Now I—I like animals. One of my things in college was herpetology. I saw this there. My dog—I got this Rottweiler who wouldn't hurt a soul, and he's there, and he's looking at this thing blown up, and he's looking at me, and he's just really puzzled.

This was right after I got out—out of Mercy Hospital. And I'm sitting on my stoop, and out comes Mr. Toad. And he would sit with me at night, and I started imagining this dialogue between me and Mr. Toad. And Mr. Toad wants to get even for the death of his friend....

Soboroff further testified that he...